Sullivan v. Thompson

DORAN, J.

—This is an appeal by defendant C. Standlee Martin from a judgment entered jointly against him and the defendant Clifford T. Thompson, in favor of plaintiff, a minor eight years of age, for damages resulting from an automobile accident which occurred in Long Beach, California.

Defendant Martin, an automobile dealer, is also the operator of a used-car business having two locations in Long Beach: one at 730 American Avenue, and the other at Ocean and Atlantic Avenues. Defendant Thompson was employed by Mr. Martin as a used-car salesman, his duties being wholly concerned with that phase of the business.

On Sunday, June 14, 1936, the day of the accident, Mr. Thompson was directed to report to the Ocean Avenue lot for “floor duty” in the afternoon between the hours of 12:30 and 6 o’clock, in accordance with a schedule arranged by the used-car salesmanager. With regard to such schedule, Mr. Martin testified that the salesmen’s hours on duty were not strictly confined to the time of such schedules.

[677]

It appears from the evidence that on the . preceding Wednesday Thompson had negotiated with a Mr. Lee Montoya for the sale to the latter of a certain used Nash automobile. Montoya, who lived in San Pedro, agreed to return on Friday to consummate the sale but he failed to do so. On Friday afternoon Thompson drove to Montoya’s residence in the Nash car and there had a conversation with Mrs. Montoya in which, according to her testimony, a further appointment was made by Thompson to meet Montoya from “eleven to eleven thirty, or twelve, around there”, on the following Sunday at the American Avenue lot in Long Beach.

On the Sunday in question Thompson left his home at approximately 11 o’clock in the morning in his own car, with the intention of keeping the appointment made with Montoya, and, while en route, drove his car into the rear of a parked automobile, from which collision the alleged damages resulted.

Appellant contends that the “finding of the trial court that the defendant Thompson was acting within the course and scope of his employment by the .defendant and appellant Martin at the time of the accident and injury is without support in the evidence”, and that finding No. IV on damages for medical expense is likewise without support in the evidence and is contrary to law.